Contempt sentence upheld for lawyer.
Contempt sentence upheld for lawyer Appellate judges back punishment for public defender’s trial delay.
JOE LAMBE Staff Writer
PUBLICATION: The Kansas City Star
SECTION: JOHNSON COUNTY/METRO
DATE: February 14, 1996
EDITION: JOHNSON COUNTY
In a ruling that bolsters judicial power, a Missouri appeals court Tuesday upheld a Jackson County judge’s order sending a defense lawyer to jail.
Circuit Judge William F. Mauer ordered lawyer John Picerno to jail for 15 days in July after the assistant public defender refused to start a trial.
Picerno prompted the order by refusing to participate in the trial of a man charged with 16 counts of rape, kidnapping, armed robbery and other crimes. Picerno said he was not prepared for trial and asked for a delay.
Mauer noted that the defendant, James Hamilton, repeatedly had delayed his trial by shifting among three public defenders.
Picerno appealed the contempt order, arguing that court rules required him to protect his client’s rights and disobey Mauer.
A majority of a panel of the Missouri Court of Appeals in Kansas City disagreed. Picerno, the majority wrote, overlooked another court rule, that a lawyer has a duty to uphold legal process.
Appellate Judge Paul M. Spinden cited another case in his opinion: “If parties make themselves the judge of the validity of a court order … then the courts become impotent, and judicial power becomes a mockery. ” Appeals Judge Edwin H. Smith joined in the opinion.
Picerno, now a defense lawyer in private practice, has served no jail time while his case is on appeal. He said Tuesday that he would ask for a rehearing before the entire appeals court or a transfer to the Missouri Supreme Court.
The case pits the power of judges and prosecutors against the power of indigent defendants and their lawyers, Picerno said.
“They’re going to be right because they have more power than we do,” he said, “but that doesn’t make it right. ” Appeals Judge Laura Denvir Stith wrote in a dissent that she thought Picerno should have received a separate hearing before another judge for so-called “indirect contempt. ” That, she wrote, is because Mauer spoke in court of past delays caused by Picerno and the public defender system – things not a part of direct contempt in his courtroom.
The majority wrote, “Picerno‘s past conduct may have made Mauer less patient with him, but … Mauer held Picerno in contempt for refusing to remain in the courtroom, not for his previous conduct. ” Jackson County Prosecutor Claire McCaskill said Tuesday: “The appeals court made a wise decision. This is a system of rules, and it falls apart unless everyone follows them. ” Jackson County Public Defender Joel Elmer said he did not expect the ruling to affect other cases because there was no systematic problem of public defenders delaying cases.
Hamilton was represented by another lawyer at a trial in August 1995. He was convicted of all 16 counts. Mauer sentenced him to seven life terms plus 447 years. His appeal is pending.